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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
N.G., : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
C.G., :
:
Appellee : No. 2205 MDA 2014
Appeal from the Order entered November 25, 2014,
Court of Common Pleas, Dauphin County,
Civil Division at No. 2011-CV-04775-CU
BEFORE: DONOHUE, OTT and MUSMANNO, JJ.
MEMORANDUM BY DONOHUE, J.: FILED SEPTEMBER 09, 2015
Appellant, N.G. (“Father”), appeals pro se from the order entered on
November 25, 2014 in the Court of Common Pleas, Dauphin County, denying
Father’s motion to modify custody and petition for contempt, and granting
C.G.’s (“Mother”) motion to modify custody. For the reasons set forth
herein, we affirm.
A summary of the factual and procedural history is as follows. Mother
and Father married on July 22, 2007 and their daughter E.G. was born on
September 15, 2010. Mother and Father separated on April 29, 2011, and
on May 10, 2011, Father filed a complaint for custody of E.G.
On November 17, 2011, following a three-day custody hearing, the
trial court entered a custody order (the “2011 Custody Order”). Pursuant to
the 2011 Custody Order, Mother and Father shared legal custody of E.G. and
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shared decision-making with regard to E.G.’s health, welfare, education,
religious training and upbringing. The trial court awarded Mother primary
physical custody of E.G. and partial physical custody to Father on alternating
weekends from Thursday at 5:00 p.m. until Monday at 8:00 a.m. The 2011
Custody Order prohibited either parent from relocating E.G. or from traveling
outside the continental United States with E.G. without court order.
On February 15, 2013, Mother filed a petition for modification of the
2011 Custody Order, asserting that since May or June 2012, Father
requested to exercise custody of E.G. on alternate weekends from Saturday
until Sunday instead of Thursday until Monday. Mother requested the trial
court to update the 2011 Custody Order to reflect this schedule. On April
29, 2013, the trial court entered an order (the “Amended Custody Order”),
amending the 2011 Custody Order to reflect that Father would have custody
of E.G. on alternating weekends from Saturday at 9:00 a.m. to Sunday at
5:00 p.m.
In October 2013, Father emailed Mother to inform her that he would
not be able to take E.G. for his periods of custody and would let her know
when he would next be able to exercise custody. After attempting to contact
Father, and learning that his phone number was out of service, Mother
contacted Father’s attorney, who informed her that he had traveled to India
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for an indefinite period.1 Father’s attorney agreed to provide Mother with at
least two weeks’ notice of Father’s return to the United States and intention
to resume exercising custody.
On March 10, 2014, E.G. told Mother that Father visited her at
daycare. The daycare confirmed that Father visited E.G. The next day,
Father emailed Mother, informing her that he intended to pick E.G. up on
Saturday for his weekend visit with her. Mother refused to exchange
custody.
On March 27, 2014, Mother filed a petition for modification and
contempt of custody order. Mother’s petition alleged that Father “willfully
disobeyed” the 2011 Custody Order and the Amended Custody Order by
failing to exercise custody, to provide advance notice of his intention to
move to India, to notify Mother of his medical health, and to notify Mother of
his intention to visit E.G. at daycare. See Mother’s Petition for Modification
and Contempt of Custody Order, 3/27/14, at 4-5. Mother requested that the
trial court modify the 2011 Custody Order and the Amended Custody Order
to give Father several dinner visits and to eliminate overnight visitation. Id.
at 5 ¶ 23.
On March 31, 2014, Father filed a petition for contempt, alleging that
Mother failed to show up for a custody exchange after he returned from
1
Mother later learned from Father’s parents that Father traveled to India to
have a full knee replacement surgery.
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India, that Mother rejected his phone calls, and that Mother did not reply to
his emails regarding E.G.’s health and activities, in violation of the Amended
Custody Order.
Mother and Father appeared before the trial court on July 23, 2014, on
their petitions for contempt and Mother’s petition for modification. At the
hearing, counsel for Mother withdrew the request to eliminate Father’s
overnight visitation, stating, “At this point, we are not requesting to change
the visitation schedule. We are requesting sole legal custody2 and some
language to deal with the issue of [F]ather spontaneously traveling for long
periods of time and giving -- requiring some notice to [Mother].” N.T.,
7/23/14, at 5. Meanwhile, Father requested that the trial court modify the
2011 Custody to provide shared physical and legal custody of E.G. Id.
On August 5, 2014, E.G.’s school, the Goddard School Hershey,
terminated its relationship with E.G. The school cited Father’s behavior as
the reason behind their decision, claiming that Father argued with the
school, reported the school to the Department of Public Welfare, threatened
and harassed the owners of the school, and disrupted E.G.’s classroom and
teacher by visiting E.G. at school several times a week. Mother
subsequently found other childcare on short notice, but refused to tell Father
what those arrangements were.
2
At the hearing on October 8, 2014, Mother modified her request to limit
sole legal custody to matters concerning E.G.’s education and childcare.
N.T., 10/8/14, at 47-48.
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Following several custody hearings, the trial court entered an order on
November 25, 2014 (the “2014 Custody Order”) denying Father’s motion to
modify custody, dismissing Father’s petition for contempt, and granting
Mother’s motion to modify custody. The trial court determined that Father
“created an atmosphere wherein daycare facilities no longer wish to have
[E.G.] enrolled.” Trial Court Opinion, 11/25/14, at 2. Furthermore, the trial
court determined that Mother is more likely to encourage and permit
continuing contact with Father; provides stability and continuity in E.G.’s
education, family life, and community life; and is more likely to maintain a
stable and consistent relationship with E.G.. Id. at 2-3. The 2014 Custody
Order therefore granted Mother and Father shared legal custody and joint
decision-making with regard to E.G.’s health, welfare, religious training and
upbringing. The 2014 Custody Order, however, awarded Mother sole legal
custody as to all decisions regarding E.G.’s education and/or daycare. All
other aspects of the 2011 Custody Order remained in effect.3
On December 23, 2014, Father filed a timely notice of appeal and a
concise statement of reasons relied on appeal pursuant to Rule 1925(b) of
3
The 2014 Custody Order also struck Paragraph 10 of the 2011 Custody
Order, which provided instructions in the event E.G.’s daycare was closed or
the child was unable to attend daycare on that day. This modification is not
relevant for purposes of this appeal.
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the Pennsylvania Rules of Appellate Procedure.4 On appeal, Father raises
the following issues for our review, which we have reordered:
1. Is it in the best interest of [E.G.] that [] [F]ather
is not being allowed to be an equal parent in her life
based on allegations of errors of the past made and
not based on present fitness and the probabilities of
the future? Trial court judge denied [F]ather shared
custody indicating that he thought so.
2. Should a loving father not be allowed to be an
equal parent to his daughter [E.G.] and not be
granted shared custody just because [] [M]other
dislikes [] [F]ather and is willing to say anything to
disparage [] [F]ather [Transcript 9-23-11 pages 138-
39)? Is that in the best interest of [E.G.]? Trial court
judge denied [F]ather shared custody indicating that
he thought so.
3. Is it not conceivable that the judge was swayed
by [M]other’s testimony because she is a woman,
teacher, and mother represented by YWCA Legal
Services who normally represent abused women? Is
it not conceivable that this bias weighed heavily on
the mind of Hon. Judge Evans and clouded his
4
We note that this case was delayed for panel listing because of delays by
the Dauphin County Court of Common Pleas. The trial court refused to
complete the transcripts at the County’s expense, despite Father’s in forma
pauperis status. On January 15, 2015, this Court entered an order requiring
the trial court to complete the transcripts free of charge within twenty-one
days. The trial court failed to comply with the twenty-one day deadline. On
February 23, 2015, this Court’s Prothonotary issued a delinquent record
notice. The trial court thereafter sent the certified record on February 27,
2015, but the record did not contain an opinion pursuant to Rule 1925(a) of
the Pennsylvania Rules of Appellate Procedure. On March 13, 2015, this
Court directed the trial court to file a Rule 1925(a) opinion and vacated the
briefing schedule. The briefing schedule was reactivated on March 17, 2015,
after the trial court provided a supplemental record with a statement in lieu
of a Rule 1925(a) Opinion. This case was then further delayed for panel
listing due to requests for extensions of time by the parties and a dispute
between the parties regarding proper service.
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judgment? Is that in the best interest of [E.G.]?
Trial court judge ignored [F]ather’s testimony along
with those of his friends Margaret Vincent, James
LeValley, Matthew Campbell and Peter Kruia, father
Suresh Goklaney, aunt Manju Rajagopalan, mother
Reshma Goklaney, sister Nisha Chivukula indicating
that we was a very good father and shared a loving
bond with his daughter.
4. Is [] [F]ather’s testimony that he reads, prays,
teaches, feeds, plays, bathes, changes diapers, and
loves and comforts his daughter [E.G.] less credible
than [] [M]other because [M]other is a school
teacher whereas [F]ather is looking for employment?
Trial court judge denied [F]ather shared custody
indicating that he thought so.
5. Is it in [E.G.’s] best interest that she should not
be allowed to travel to India to visit with her paternal
grandparents and the rest of [] [F]ather’s family or is
that more in the interest of satisfying [] [M]other’s
unfounded fear that [E.G.] may not return? Is it fair
to [E.G.] that she should be cut off from [] [F]ather’s
family because of [] [M]other’s unfounded fear?
Trial court ordered that [E.G.] should not leave the
United States without court order and that no
passport issue to her indicating that he thought so.
6. Is there an automatic presumption that all
immigrant parents in a child custody situation from
non[-]Hague [C]onvention countries will take their
children to visit their country of birth never to
return? Is it in [E.G.’s] best interest that she should
not be able to see her paternal grandparents and
family just because [] [F]ather was born and
immigrated from India, a country that has not yet
signed the Hague Convention? Trial court ordered
that [E.G.] should not leave the United States
without court order and that no passport issue to her
indicating that he thought so.
Father’s Brief at 6-7.
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Our standard of review of a custody order is well settled.
In reviewing a custody order, our scope is of the
broadest type and our standard is abuse of
discretion. We must accept findings of the trial court
that are supported by competent evidence of record,
as our role does not include making independent
factual determinations. In addition, with regard to
issues of credibility and weight of the evidence, we
must defer to the presiding trial judge who viewed
and assessed the witnesses first-hand. However, we
are not bound by the trial court’s deductions or
inferences from its factual findings. Ultimately, the
test is whether the trial court’s conclusions are
unreasonable as shown by the evidence of record.
We may reject the conclusions of the trial court only
if they involve an error of law, or are unreasonable in
light of the sustainable findings of the trial court.
R.L.P. v. R.F.M., 110 A.3d 201, 207-08 (Pa. Super. 2015) (quoting C.R.F.,
III v. S.E.F., 45 A.3d 441, 443 (Pa. Super. 2012)).
The Child Custody Act provides that with any petition to modify a
custody order, the trial court must determine if the modification serves the
best interest of the child. 23 Pa.C.S.A. § 5338. When the modification
entails a change to an award of custody, the trial court, in determining the
best interest of the child, must consider seventeen factors as set forth at 23
Pa.C.S.A. § 5328(a). See M.O. v. J.T.R., 85 A.3d 1058, 1062 (Pa. Super.
2014). As a general rule, mere consideration of the factors is insufficient as
“[s]ection 5323(d) [of the Child Custody Act] provides that a trial court ‘shall
delineate the reasons for its decision on the record in open court or in a
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written opinion or order.’” A.V. v. S.T., 87 A.3d 818, 823 (Pa. Super. 2014)
(citations omitted); 23 Pa.C.S.A. § 5323(d).
In this case, both Mother and Father requested the trial court to
modify the 2011 Custody Order. Mother sought a change to the award of
legal custody, while Father sought a change to the award of physical and
legal custody. Thus, because the modification entailed a change in custody,
the trial court was required to consider the section 5328(a) factors and
delineate its rationale with regard to the factors on the record or in its
written opinion. See 23 Pa.C.S.A. § 5323(d); M.O., 85 A.3d at 1062. The
trial court did not do so in this instance. Rather, in its written opinion, the
trial court only provided an analysis of five of the seventeen factors.
Ordinarily this Court would be required to remand this case back to the trial
court for an analysis of all factors. See S.W.D. v. S.A.R., 96 A.3d 396,
406-07 (Pa. Super. 2014) (Holding that a trial court’s failure to address all of
the § 5328(a) factors constitutes an abuse of discretion, and requires the
case be remanded for an analysis of all factors.); see also J.R.M. v. J.E.A.,
33 A.3d 647, 652 (Pa. Super. 2011). Our review of the record, however,
reveals that remanding the case to the trial court is unnecessary in this
instance, as Father has waived all issues for review. 5
5
It is well settled that
[w]hile this [C]ourt is willing to liberally construe
materials filed by a pro se litigant, we note that
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For his first issue on appeal, Father claims that the trial court denied
Father shared custody “based on allegations of errors of the past made and
not based on present fitness and the probabilities of the future[.]” Father’s
Brief at 6. Although Father does not specify what “allegations of errors” he
is referring to, from what we can discern from Father’s brief, Father is
claiming that the trial court improperly relied upon testimony regarding past
abuse committed by Father against Mother in reaching its determination.
See id. at 18-19. Father, however, did not raise this issue in his 1925(b)
statement, and accordingly, it is waived. See Dietrich v. Dietrich, 923
A.2d 461, 463 (Pa. Super. 2007) (“When an appellant files a Pa.R.A.P.
1925(b) statement, any issues not raised in that statement are waived on
appeal.”).
For his next two issues on appeal, Father questions whether the trial
court’s decision to deny shared custody was in the best interest of E.G. See
Father’s Brief at 6-7. Father specifically claims that the trial court denied
Father shared custody because Mother dislikes Father and because the trial
appellant is not entitled to any particular advantage
because []he lacks legal training. Further, any
layperson choosing to represent himself in a legal
proceeding must, to some reasonable extent,
assume the risk that his lack of expertise and legal
training will prove his undoing.
Rich v. Acrivos, 815 A.2d 1106, 1108 (Pa. Super. 2003) (quotations and
citations omitted).
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court was biased in favor of Mother since she is a woman, a teacher, and
represented by the YWCA. Id.
Upon review, we conclude that we need not address the merits of
Father’s claims in this instance because Father failed to develop an
argument in support of his claims in accordance with Rule 2119(a) of the
Pennsylvania Rules of Appellate Procedure. Rule 2119(a) provides that
“[t]he argument shall be divided into as many parts as there are questions
to be argued; and shall have at the head of each part—in distinctive type or
in type distinctively displayed—the particular point treated therein, followed
by such discussion and citation of authorities as are deemed pertinent.”
Pa.R.A.P. 2119(a). “Citations of authorities must set forth the principle for
which they are cited.” Pa.R.A.P. 2119(b). “Appellate arguments which fail to
adhere to these rules may be considered waived, and arguments which are
not appropriately developed are waived. Arguments not appropriately
developed include those where the party has failed to cite any authority in
support of a contention.” Coulter v. Ramsden, 94 A.3d 1080, 1088 (Pa.
Super. 2014) (quoting Lackner v. Glosser, 892 A.2d 21, 29-30 (Pa. Super.
2006)).
In this case, Father did not divide the argument portion of his brief
into as many parts as there are questions to be argued. Although Father
presented six issues on appeal, the argument portion of his brief only
contains three distinct parts. Moreover, Father did not present any
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argument, discussion, citation to authority, or analysis relative to issues two
and three. Father’s failure to develop an argument for appeal precludes
meaningful review by this Court, and as a result, we conclude that issues
two and three are waived.
For his fourth issue on appeal, Father contends that the trial court
denied him shared custody because it found Father’s testimony that he cares
for and loves E.G. less credible than Mother’s testimony. Father’s Brief at 6.
Father’s brief, however, contains nothing more than a summary of the
testimony at the 2011 custody hearings and asks this Court to find that the
trial court improperly weighed the testimony in reaching its 2011 Custody
Order. Id. at 20-21.
Father is challenging the findings of fact made by the trial court in
connection with the 2011 Custody Order. This he cannot now do, as he was
required to challenge those rulings, if ever, within thirty days of the 2011
Custody Order pursuant to Rule 903(a) of the Pennsylvania Rules of
Appellate Procedure. See Pa.R.A.P. 903(a) (“Except as otherwise prescribed
by this rule, the notice of appeal required by Rule 902 (manner of taking
appeal) shall be filed within 30 days after the entry of the order from which
the appeal is taken.”). His attempts to do so are untimely and accordingly,
Father’s fourth issue is waived.
Father has waived his fifth and sixth issues on appeal for the same
reason. In these final two issues, Father challenges the trial court’s order
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preventing E.G. from obtaining a passport or from traveling outside of the
United States without court order. Father’s Brief at 21-22. Father contends
that the trial court improperly presumed that he would abduct E.G. because
India is not a party to the Hague Convention. Id. at 21.
The 2014 Custody Order, however, made no corrections or additions to
the portion of the 2011 Custody Order that originally prevented E.G. from
obtaining a passport and from traveling outside of the United States. Father
did not appeal that portion of the 2011 Custody Order, and any appeal now
is untimely. See Pa.R.A.P. 903(a). Furthermore, a review of the record
reveals that Father did not present any new argument at the 2014 custody
hearings or in his brief to alter the trial court’s 2011 findings of fact or to
warrant a modification to the 2011 Custody Order. Father’s argument on
appeal is limited to simply contesting the accuracy of Mother’s statements
from a 2011 custody hearing. See id. at 21-22. As previously discussed,
the 2011 Custody Order is not presently before this Court, and any attempt
to appeal the trial court’s determination in that order is untimely. See
Pa.R.A.P. 903(a). We therefore conclude that Father has waived his fifth
and sixth issues for appeal.
Given our determination that Father has not preserved any issues for
appeal, we need not remand this case to the trial court for an analysis of the
remaining factors under section 5328(a).
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Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/9/2015
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